THE HAGUE – The International Criminal Court has ordered a medical examination of former President Rodrigo Duterte to determine his fitness to participate in pre-trial proceedings, including the confirmation of charges. 

Later, ICC judges affirmed the court’s jurisdiction in the crime against humanity case against the former president.

In a ruling dated Oct. 23, ICC Pre-Trial Chamber I Judges Iulia Antoanella Motoc, Reine Adélaïde Sophie Alapini-Gansou, and María del Socorro Flores Liera rejected the defense’s argument that the ICC cannot exercise jurisdiction over the case because the investigation into the war on drugs in the Philippines was only authorized in September 2021, two years after the country’s effective withdrawal from the Rome Statute.

“The jurisdictional regime set out in Part 2 of the Statute continues to apply to this case as if the Philippines were still a Party to the Statute, so as to ensure that, pursuant to article 127(2) of the Statute, the withdrawal of the Philippines from the Statute “shall not […] prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective,” it read.

The judges ruled that no provision in the Statute imposes any time limit on the ICC’s ability to exercise jurisdiction over crimes committed during the period when the State was a party to the Statute.

They pointed out that Article 127(2) of the Rome Statute “makes specific provision for the Court to be able to exercise its jurisdiction if the matter concerned was already under consideration by the Court prior to the withdrawal of a State becoming effective.”

“Article 127(2) of the Statute thereby appropriately balances the right of a State to withdraw from the Statute and the risk of a State using its right to withdraw to shield persons from the jurisdiction of the Court,” the decision read.

It also finds that the prosecution’s preliminary examination – opened in February 2018 before the Philippines deposited its written notification of withdrawal from the Statute – is sufficient for the case to move forward.

Duterte’s camp earlier submitted that a “preliminary examination” is not a “matter under consideration,” saying it is not “a formal procedural phase” but rather one that is “internal, informal, and non-justiciable.”

Earlier, the ICC denied Duterte’s petition for interim release and also barred its chief prosecutor Karim Khan from the case due to alleged bias. having assisted the prosecution previously. Khan is also facing alleged sexual complaint involving ICC staff.

The decision follows a series of filings and deliberations under Pre-Trial Chamber I, culminating in a detailed directive on the appointment of a multidisciplinary panel of medical experts.

There was no immediate comment from Duterte’s family and his defense counsel.

The Chamber, composed of Judges Iulia Antoanella Motoc, Reine Adélaïde Sophie Alapini-Gansou, and María del Socorro Flores Liera, instructed the Registry to facilitate the medical examination and provide Duterte’s complete records to a panel of three independent medical experts.

Duterte is detained in The Hague on charges of crimes against humanity for murder and attempted murder in connection with the deaths under his war on drugs when he was President and mayor of Davao City.

The ICC Pre-Trial Chamber 1 named a panel of three experts whom it ordered “to submit to submit a report, jointly to the extent possible and as considered appropriate, to the Registry, which shall then file the joint or individual reports of the Panel by no later than 31 October 2025.”

The medical panel consists of a forensic psychiatrist, a neuropsychologist, and a geriatric and behavioral neurologist who will determine if Duterte is fit to participate in the pre-trial proceedings.

They will assess whether Duterte is suffering from any medical condition that could affect his participation in the ongoing pre-trial phase and the confirmation of charges. 

They are also expected to recommend any special measures needed to accommodate his possible condition during the proceedings. 

The prosecution and defense counsels and the counsel for the victims were ordered to file their comments on or before November 5.

Duterte’s defense counsel, Nicholas Kaufman, filed several weeks back a request for the indefinite postponement of the court proceedings, saying the former president was “unfit for trial.”

The ICC has postponed the hearing on the confirmation charges against Duterte scheduled on September 23, citing the defense’s statement that he was “not fit to stand trial.”

Kaufman said Duterte is unable to recall events, places, timing, or even members of his close family

According to the public redacted version of the “Defence Request for an Indefinite Adjournment” released by the ICC on September 11, Kaufman said the 80-year-old Duterte lacked the capacity to apply the cognitive skills essential for the proper conduct of his defense.

“In fact, he is not even able to process the reasons for his detention,” Kaufman said.